Child Support After Michael and Colucci: New Measures Provide Strict Limits on Payors’ Ability to Retroactively Decrease Support

The determination as to whether child support is owing – and how much – is one of the few relatively straightforward issues that exists in the realm of family law. The Child Support Guidelines were put in place precisely for the purpose of creating certainty and reducing conflict between parents, and they’ve done wonders in terms of achieving that objective.

How much do you owe? The Guidelines specify that, to the penny. Can you ask for something more or less than the Guidelines provide for? Almost certainly not. Not sure what counts as “income” for support purposes? Check Schedule III of the Guidelines.

The Guidelines, in other words, are fairly easy to follow and, as a result, they’ve served to dramatically cut down on the complexity and the costs of litigation.

What has been less clear to date is the issue of when child support can be ordered on a retroactive basis. Can a recipient make a claim for retroactive support once the “child” is an adult? Can a payor allow arrears to accumulate, then bring a motion to adjust support retroactively based on the fact that their income dropped but they failed to tell the recipient? These have, historically, been less straightforward questions to answer. Recently, however, the Supreme Court of Canada (SCC) has addressed these issues more definitely in the companion decisions of Michel v Graydon and Colucci v Colucci.

In Colucci, the SCC seized the opportunity to clarify that a change to income alone will not necessarily result in either an increase or a decrease to support owing after the fact, unless it’s accompanied by notice to the recipient in a timely manner. What this means in practical terms is that a payor cannot simply fail to pay child support and then, when enforcement proceedings commence, rely on the fact that their income had decreased and so the support claimed wasn’t owing anyway. No more will the accumulation of arrears simply result in the historic application of the Guidelines to reduce the amount owing.

Instead, the test for a retroactive decrease has become much more stringent. Payors now have a positive obligation to inform the recipient when their income drops, and they have a much greater incentive to do that quickly. According to the SCC in Colucci, payors may ask for a decrease in support only back to the date of “informal” notice which, in turn, can be up to three years before the date of “formal” notice. This “notice” has to be accompanied by full and frank disclosure before a decrease to child support will be warranted. Otherwise, arrears will be owing, and inability to pay won’t be much of a consideration at all.

The Michel decision is more straightforward, and simply signals bad news for payors who thought that all they had to do to escape their support obligations once and for all was to wait for their children to hit adulthood. Unlike the federal Divorce Act, which limits claims for child support to children (i.e., who are still children when the application is made), the provincial statutes (in this case British Columbia’s statute) does not, and such a limitation should not be read in.

Mr. Michel was asked to pay support for children who, at the time, were already adults. He made the point that a support recipient could not ask for support for the benefit of a child who was in fact an adult at the time that the application was made.

The SCC disagreed, and found that no such bar should be read in to provincial legislation. While payors used to be fairly confident that, if they waited long enough, their child support obligations would eventually “expire”, this is no longer the case. The bottom line is that payors facing claims for retroactive support in relation to children who are now adults are facing a whole new (and very much uphill) battle.

The foregoing information provides only an overview of child support guidelines. Specific legal advice should be obtained. If you have questions in the above regard, please contact Sarah Kennedy at 613.566.2811 or at [email protected].